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Recent documents in bepress Legal Repositoryen-usTue, 14 Aug 2018 04:40:38 PDT3600Standing for Everyone: Sierra Club v. Morton, Supreme Court Deliberations, and a Solution to the Problem of Environmental Standinghttp://law.bepress.com/hastingswjelap/vol21/iss2/art2
http://law.bepress.com/hastingswjelap/vol21/iss2/art2Fri, 10 Aug 2018 22:50:15 PDTThe modern doctrine of environmental standing prevents many worthy environmental plaintiffs from presenting their cases in court; it allows those who would desecrate and despoil the environment for profit to do so with impunity. Considering the coming environmental catastrophe that climate change will almost certainly usher in, this restrictive doctrine has profound implications.

But as this Article shows, the modern environmental standing doctrine is an aberration. For most of American history, there were no standing requirements even approaching the severe demands of Lujan. Yet the Justices who created the modern doctrine claimed they were simply clarifying a “traditional requirement,” or they had “always” interpreted standing in this manner.

By delving deeply into the personal papers of Supreme Court Justices and the archives of environmental plaintiffs, this Article shows that the Justices’ invocation of tradition is blatantly incorrect. In so doing, it completely retells the story of how the less restrictive standing doctrine of the early twentieth century morphed into today’s demanding “injury-in-fact” requirement. This Article focuses especially on the seminal standing cases of the mid-1960s to the mid-1970s. By carefully reading the Justices’ opinions in concert with the archival material, this Article shows that the nebulous injury requirement of yesteryear transformed into the demanding “injury-in-fact” requirement during this time because of the Justices’ inadvertence, ignorance of history, and responsiveness to unimaginative arguments made by plaintiffs’ lawyers. In fact, the Justices actually wanted to help the burgeoning environmental organizations that brought the seminal standing cases; but, in their quest to do so, the Justices accidentally created—pretty much out of whole cloth—the strict and punitive concept of injury-in-fact.

This Article pays especial attention to Sierra Club v. Morton. Though remembered now for liberalizing the standing doctrine, this Article shows that the case did no such thing. Though remembered now for Justice Douglas’s bold dissent arguing that trees should have standing, this Article shows that the truly radical dissent belonged to Justice Blackmun.

Finally, this Article charts a path out of this mess, by arguing for a thorough rethinking of the doctrine of environmental standing. Drawing on two forgotten yet crucial insights from Blackmun’s Sierra Club dissent, as well as another largely forgotten innovation of the 1960s and 1970s, this Article argues for the passage of state-level environmental standing statutes, granting standing even in the absence of an injury. In its conclusion, this Article proposes a model law.

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Scott W. SternAdministrative LawConstitutional Law, GenerallyEnvironmental LawLegal HistoryUNDERMINING CONSTITUTIONALISM IN THE NAME OF POLICY: THE CONSTITUTIONAL COSTS OF THE WAR ON DRUGShttp://law.bepress.com/jtransnationallap/vol23/iss25/art1
http://law.bepress.com/jtransnationallap/vol23/iss25/art1Sun, 29 Jul 2018 11:35:09 PDT
Public policies are supposed to be transitory measures meant to face and solve a public problem. Constitutional design, in contrast, involves permanent decisions adopted to rule the inner workings of the polity and its government. Although policy is most often imagined as transitory and constitutional law as permanent, some policy decisions reconfigure constitutional design permanently. The enclosed article proposes a new analytic framework for rendering visible and understanding the impact of policy decisions on constitutional design. We call this framework “constitutional costs”, simultaneously pointing to the fields of constitutional law and policy analysis. Transcending the categories of constitutionality/unconstitutionality of a legal change or policy, allows for a more robust critical assessment of the constitutional implications of policy decisions. We posit that, independently of their constitutionality, policy decisions and their consequences can come into tension with existing core constitutional commitments, importantly undermining them. Understanding how these dynamics play out in a long chronological arch is complex but important, for they can significantly change the way a constitutional system works, even if the depth and breath of the changes are not acknowledged as they are adopted and implemented.

By looking in detail at the war on drugs –a complex policy- in two salient case studies -Mexico and Colombia-, we flesh out our analytical proposal and exemplify how it can be deployed. The paper focuses on two case studies, but does not purport to limit the analysis of constitutional costs to either of those two countries, or the specific “war on drugs” policy. We offer these case studies so as to simultaneously illustrate the applications of the framework and lay the groundwork for comparative analysis of constitutional costs.

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Alejandro Madrazo et al.Administrative LawCivil Rights, GenerallyComparative and Foreign LawConstitutional Law, GenerallyCriminal Law and ProcedureHuman Rights LawJurisprudenceMilitary, War and PeacePoliticsPublic Law and Legal TheoryNow Is The Winter of Ginsburg’s Dissent: Unifying the Circuit Split As To Preliminary Injunctions and Establishing A Sliding Scale Testhttp://law.bepress.com/tennesseejlp/vol13/iss1/art3
http://law.bepress.com/tennesseejlp/vol13/iss1/art3Thu, 12 Jul 2018 09:21:28 PDT
The preliminary injunction is an equitable remedy that may be granted to prevent harm to a movant before adjudication on the merits can be reached. The United States Supreme Court most recently iterated in Winter v. National Resource Defense Counsel, Inc. the four factors a court must consider for a preliminary injunction to issue.[1] A movant seeking a preliminary injunction must establish that the movant is likely to succeed on the merits; that the movant is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in the movant’s favor; and that an injunction is in the public interest.[2] Federal circuits have long been split over how to apply these factors and what kind of test these factors create. Following Winter,there is still no consensus. The circuits apply three different tests to preliminary injunction questions: the sequential test, the sliding scale test, and the gateway factor test.

Circuits that apply the sequential test require a movant to prove each of the four factors in turn, and a failure to prove one factor bars injunctive relief. Circuits that apply the sliding scale test balance all four factors, and a higher showing on one factor can make up for a lesser showing on another factor. Circuits that apply the gateway factor test require movants to demonstrate a likelihood of success on the merits and a likelihood of suffering irreparable harm in the absence of preliminary relief before addressing the remaining two elements. Under this approach the first two factors are dispositive.

This article argues that the sliding scale test is the most appropriate test when determining whether to issue a preliminary injunction. The history of equity in the United States supports this assertion. Further, the Supreme Court has historically endorsed the sliding scale test.

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Taylor PayneCivil LawConflict of LawsCourtsJurisdictionJurisprudencePractice and ProcedureTennessee's Death Penalty Lotteryhttp://law.bepress.com/tennesseejlp/vol13/iss1/art2
http://law.bepress.com/tennesseejlp/vol13/iss1/art2Thu, 12 Jul 2018 09:21:21 PDT
Over the past 40 years, Tennessee has imposed sustained death sentences on 86 of the more than 2,000 defendants found guilty of first degree murder; and the State has executed only six of those defendants. How are those few selected? Is Tennessee consistently and reliably sentencing to death only the “worst of the bad”? To answer these questions, we surveyed all of Tennessee’s first degree murder cases since 1977, when Tennessee enacted its current capital punishment system. Tennessee’s scheme was designed in response to the U.S. Supreme Court’s decision in Furman v. Georgia, which held that a capital punishment system operating in an arbitrary manner violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Tennessee’s “guided discretion” scheme was purportedly structured to reduce the risk of arbitrariness by limiting and guiding the exercise of sentencing discretion. Our survey results and analysis show, however, that the state’s capital punishment system fails to satisfy Furman’s command. Rather, it has entrenched the very problems of arbitrariness that Furman sought to eradicate. This article explains the legal background of Tennessee’s death sentencing scheme, presents the most salient results of our survey, and examines the various factors that contribute to the arbitrariness of Tennessee’s system—including infrequency of application, geographical disparity, timing and natural deaths, error rates, quality of defense representation, prosecutorial discretion and misconduct, defendants’ impairments, race, and judicial disparity.
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Bradley A. MacLean et al.Criminal Law and ProcedureThe Certification Paradoxhttp://law.bepress.com/usclwps-lss/269
http://law.bepress.com/usclwps-lss/269Wed, 11 Jul 2018 08:41:54 PDT
It is commonly observed that certification intermediaries mitigate informational asymmetries by “lending” reputational capital to support transacting parties’ quality commitments. However, this proposition is challenged by cases in which well-established intermediaries have failed to detect fraud, misrepresentation and other misbehavior. The “certification paradox” provides a more nuanced account that anticipates both the general success, and periodic failure, of certification intermediaries. Transacting parties minimize search and evaluation costs by using a small number of certification intermediaries with large stocks of reputational capital. Incumbent certifiers are substantially protected by entrants’ high costs of accumulating sufficient reputational capital and users’ high costs of switching to new certifiers. Incumbent certifiers have incentives to preserve reputational capital by generally maintaining investments in informational accuracy but, given the limited threats of competitive entry and user defection, to periodically save on costs by reducing certification effort. At least historically, certifiers have sought to commit against opportunistic reductions in informational accuracy by adopting non-profit, partnership and other “constrained” organizational forms that cap the gains from shirking on certification effort. This organizational prophylactic against certification failure may outperform direct regulatory interventions, which are liable to overestimate the demand for informational accuracy or erode the market rents that support certifiers’ incentives generally to maintain informational accuracy.
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Jonathan M. BarnettSpecial Interest Influence under Direct versus Representative Democracyhttp://law.bepress.com/usclwps-lss/268
http://law.bepress.com/usclwps-lss/268Tue, 10 Jul 2018 09:04:36 PDT
The ability of economic interest groups to influence policy is a common theme in economics and political science. Most theories posit that interest group power arises from the ability to influence elected or appointed government officials through vote-buying, lobbying, or revolving doors; that is, by exploiting the representative part of democracy. This raises the question: does special interest influence decline when policy is chosen using direct democracy, without involvement of representatives? An analysis of the content of the universe of state-level ballot initiatives during 1904-2017 reveals that business interests have been worse off as a result of initiatives across major industrial groups. An examination of all large contributions to ballot measure campaigns in California during 2000-2016 reveals that corporate and business interests were usually on the defensive with initiatives, and were much less likely to gain favorable legislation from citizen-initiated proposals than from proposals that originate in the legislature. The evidence suggests that economic interest groups have less influence under direct than representative democracy.
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John G. MatsusakaA Modern System for Resolving Online Copyright Infringement Disputes: Administrative Rulemaking and Adjudication, a one-stop fix to the Digital Millennium Copyright Acthttp://law.bepress.com/ideajlat/vol58/iss2/art3
http://law.bepress.com/ideajlat/vol58/iss2/art3Thu, 05 Jul 2018 17:45:07 PDT
In 1998, Congress passed the Digital Millennium Copyright Act in an attempt to address the proliferation of Internet based piracy and copyright infringement. The Act sought to establish a more efficient and less financially burdensome mechanism for resolving online copyright disputes as compared to those provided by traditional avenues such as litigation. In doing so, however, Congress desired to properly balance the competing interests of Internet service providers, copyright owners, and online users. The Digital Millennium Copyright Act grants Internet service providers and intermediaries a series of safe harbors that substantially reduce exposure to secondary copyright liability. These safe harbors are contingent on satisfaction of a number of pre-conditions, the most notable requirement being the implementation of a notice and takedown system. Unfortunately, in practice, the notice and takedown regime has proven to be inordinately difficult to operate, easily exploited as a means to suppress free speech, and ineffective at combatting widespread infringement. This article explores the intricacies of the DMCA’s notice and takedown regime and identifies its most critical shortcomings. The article then argues that a targeted restructuring and expansion of the United States Copyright Office, including granting the agency with administrative rulemaking and adjudicative authority, could serve to ameliorate the regimes greatest inefficacies by providing more responsive, consistent, and equitable resolution of online copyright disputes.
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Alan J. GochaIntellectual Property LawMeasuring the Value of a “Zombie” Brand: a Survey-Based Modelhttp://law.bepress.com/ideajlat/vol58/iss2/art2
http://law.bepress.com/ideajlat/vol58/iss2/art2Thu, 05 Jul 2018 17:45:01 PDT
A brand can remain alive in the public’s collective memory bank for years after its use has been thoroughly discontinued in the marketplace. These brands can potentially be revived, either in the same class of goods or services as in their former lifetimes, or they can take a totally different direction after reincarnation.

This article discusses two real-world case studies of such brand revival, and canvasses the law and policies related to abandoned trademarks. Further, it proposes a specific measure for valuing the revival potential of a dormant brand name through an empirical consumer survey. Specifically, an online consumer survey conducted for this article questioned over 800 consumers. It measured any potential advantage provided to a new business using the mark “CIRCUIT CITY”[1] as compared to a new mark “TECH TOWN” for the hypothetical launch of a chain of new nationwide retail electronics stores.

Consumer survey results revealed that the dormant brand CIRCUIT CITY contained no statistically measurable goodwill-based advantage over launch of a totally new brand, but the brand also did not possess any higher negative connotation among consumers, and possessed consumer recognition. Therefore, while there might be some economic advantage to harnessing the name recognition of a dormant brand, that dormant brand apparently faces the same obstacles to a successful market re-entry as any totally new brand in the same category. Verbatim responses revealed that consumers are sophisticated, and are wary of automatically assuming that a newly-revived dormant brand would provide the same quality of products or services as before.

[1]See Jason Albanese, Zombie Brands: 3 Tech Retailers Get a Second Chance at a New Life, INC., Jan. 13, 2017, https://www.inc.com/jason-albanese/zombie-brands-3-tech-retailers-get-a-second-chance-at-life.html, visited on May 8, 2017 (discussing revival attempt of CIRCUIT CITY brand).

In a seminal piece penned over four decades ago, Calabresi and Melamed theorised a legal remedies framework that contrasted “property rules” with “liability” rules.

Given the various woes associated with patent exclusivities, I draw on this influential “remedies” framework to suggest that we are on the cusp of a paradigm shift, where property rules are yielding to liability rules in a significant way.

Some of the factors contributing to this paradigm shift are as below:

An increasing fragmentation of the innovation ecosystem, where the inventor, the innovator and the marketer/distributor of the innovative products/services are often distinct entities, who operate under licensing arrangements.

Closely following from the above point, the increasing ease with which IP is valued and traded in the market and the emergence of a market for IP.

The onset of judicial compulsory licenses and ongoing royalties.

The last factor is particularly important, and I predict that courts in future are more likely to deny injunctions on the ground that patent injury is compensable in monetary terms. The latest decision of the US CAFC (Court of Appeals for the Federal Circuit) in Nichia vs Everlight is testament to this sentiment.

I argue that developing countries in particular may find a compensatory liability model attractive, as it helps them retain the space for technological imitation, and blunt the egregious externalities associated with patent exclusivity in terms of healthcare costs and the like.

In the ultimate analysis, a more pervasive compensatory liability regime takes us closer to the idea of what I label as a “compensatory (innovation) commons”.

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Shamnad Basheer MrIntellectual Property LawRethinking Title VII's Protections Against Sex Discrimination in an Employment Context: Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017)http://law.bepress.com/tennesseejlp/vol13/iss1/art1
http://law.bepress.com/tennesseejlp/vol13/iss1/art1Thu, 05 Jul 2018 05:10:10 PDTTyler CorcoranCivil Rights, GenerallyGenderSexual OrientationTroubled Water: Building a Bridge to Clean Energy through Small Hydropower Regulatory Reformhttp://law.bepress.com/uclajelp/vol34/iss2/art2
http://law.bepress.com/uclajelp/vol34/iss2/art2Thu, 28 Jun 2018 19:46:35 PDT
It is beyond credible dispute that the planet is heating up at an alarming rate and that the ecological effects of global warming pose real questions about the continued viability of human and non-human life on earth in the not-too-distant future. A primary cause of global warming is the burning of carbon-based fuels, mainly coal, natural gas, and oil, to generate electricity and for other purposes. Clearly, more must be done, and done soon, to stave off the worst impacts of global warming.

Drastically reducing global carbon emissions features prominently in any serious proposal to combat global warming. However, given that humans are extremely unlikely to willingly give up the massive recreational, economic, health, and quality-of-life benefits that come from having access to plentiful, cheap, and reliable electricity, any reductions in carbon-generated electricity will likely have to be made up for by massive increases in non-carbon-based means of generation, such as wind, solar, and hydroelectricity. There is also an important role for distributed generation of electricity in this new energy future, albeit one with significant financing challenges that must be addressed. Distributed generation is the production of electricity using small-scale generation facilities at or near the point of consumption.

Electricity generation from small hydro installations is a form of distributed generation. A recent study of the potential of small hydro estimated that small hydro in the U.S. has the capacity to provide more than 100,000 MW of new electricity production annually. Although wind and solar energy are driving most of renewable energy’s growth in America, adapting U.S. energy law and policy to effectively confront the trends of climate change will also require rethinking the future of hydropower, including small hydropower, which may offer a less contentious approach to tapping America’s vast hydro resource.

Aside from nuclear power, hydropower is the most heavily regulated electricity generating source in the U.S. The current regulations governing small hydropower discourage investment and unnecessarily burden developers by requiring them to navigate a costly, complex, and time-consuming regulatory framework that may be appropriate for large dams given the environmental and ecological damage such dams can cause, but are regulatory overkill for the comparatively tiny impacts from a small hydro project. With low-impact small hydropower technologies offering a politically-promising approach to utilizing untapped hydropower potential in America, while also allowing fisheries to thrive, rivers to run free, and the environment to remain largely unaltered, this regulatory scheme is ripe for reform.

The article is presented in four parts. Part I outlines the history of hydropower regulation in America, including the environmental, geographic, and human effects of big dam hydropower development that ultimately engendered the onerous regulations currently governing all hydropower development, including small hydro. Building off this history, Part II discusses America’s hydropower potential, the available methods for tapping it, and the possible environmental impacts of these methods. Part III provides an overview of the current regulations governing small hydropower. The article concludes in Part IV by proposing areas where the regulatory framework for low-impact small hydropower should be reformed to properly and responsibly encourage its development, including (1) making a regulatory distinction between low-impact and more physically-intrusive methods of hydropower generation; and (2) streamlining and expediting the approval process for low impact small hydropower projects.

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Samuel J. Panarella et al.Administrative LawEnergy and Utilities LawEnvironmental LawLand UseNatural Resources LawWater LawLessons for Academic Leaders from Modern Restructuring Practicehttp://law.bepress.com/usclwps-lss/267
http://law.bepress.com/usclwps-lss/267Tue, 19 Jun 2018 10:08:40 PDT
Financial distress has hit higher education. More and more universities and colleges are facing existential challenges as the competition for a dwindling number of students has put a strain on revenues. Unlike leaders in other industries, the presidents and chancellors of a financially distressed institutions of higher education cannot explore the possibility of a Chapter 11 filing under the Bankruptcy Code to restructure their obligations so that they align better with their revenues. Federal law prohibits Title IV loans – the lifeblood of virtually every university and college – from being made to students who attend a school that is in an insolvency proceeding. Yet academic leaders can take lessons from modern Chapter 11 practice: they can, in advance of financial distress, ensure that their boards of trustees have members who can provide advice to the schools’ leaders as to the difficult choices that they face; they can employ restructuring professionals who have experience in turning around operations without a bankruptcy filing; finally, given that many of these institutions have relatively few creditors, they can attempt to negotiate a restructuring support agreement that would restructure the schools’ debts without a bankruptcy filing. The options available to leaders in the higher education space are not as robust as the options available to leaders of private enterprise, but they do exist and can be useful in confronting financial distress.
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Robert K. RasmussenBlack Bodies Drowning in the Mediterranean Sea: Why Does the World Not Care?http://law.bepress.com/jgenderrj/vol20/iss1/art2
http://law.bepress.com/jgenderrj/vol20/iss1/art2Sat, 19 May 2018 11:15:09 PDT
In November 2014, Pope Francis urged European leaders to stop the Mediterranean Sea from becoming a “vast cemetery” for migrants. Known for its crystal clear blue water, beautiful sunsets, and top vacation destinations, calling the sea a “cemetery” seems rather paradoxical. However, while less commonly known for its ugly and shameful history, for the thousands of migrants who have drowned in the Mediterranean, this sea remains their graveyard. Although these migrants come from various regions, the majority of migrants traveling on the Central Mediterranean route—the world’s deadliest route—originate from Sub-Saharan Africa. Despite the magnitude of the problem, this issue has received limited media coverage and inadequate life-saving solutions. By drawing from various academic disciplines and theories—e.g. international law, philosophy, psychology, the media’s depiction of Africa, and Critical Race Theory—this paper advances two key arguments. First, I argue that the lack of proposed solutions concerning the drowning of African migrants can be understood through the metaphor of the “Dark Continent,” which has been used for centuries to “other” Africans within Western philosophy and consciousness. Second, I contend that, at least in the United States, racist attitudes towards Blacks also plays a significant role more generally in our lack of public concern of Black lives.
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Roza PattersonHuman Rights LawImmigration LawInternational LawLaw of the SeaRace and EthnicityChildren's Conversational Memory Regarding a Minor Transgression and a Subsequent Interviewhttp://law.bepress.com/usclwps-lss/266
http://law.bepress.com/usclwps-lss/266Mon, 14 May 2018 14:19:36 PDT
Children’s memories for their conversations are commonly explored in child abuse cases. In two studies, we examined conversational recall in 154 4- to 9-year-old children’s reports of an interaction with a stranger, some of whom were complicit in a transgression and were admonished to keep it a secret. Immediately afterwards, all children were interviewed about their interaction. One week later, children were asked recall questions about their interaction with the stranger, their conversations with the stranger, and their conversations with the interviewer. Overall, interaction recall questions elicited few details about children’s conversations, whereas conversation recall questions were effective in doing so. Accuracy was high in response to both the interaction and conversation recall questions, with no differences observed. Questions explicitly inquiring about coaching elicited higher error rates, as well as apparent attempts to maintain secrecy. Source errors were rare. Conversation recall questions elicited new transgression disclosures among a substantial percentage of children. The results provide tentative support for the use of recall questions in eliciting conversational information from children.
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Stacia N. Stolzenberg et al.Aging in Harmony: Creating Culturally Appropriate Systems of Health Care for Aging American Indian/Alaska Nativeshttp://law.bepress.com/jgenderrj/vol20/iss1/art1
http://law.bepress.com/jgenderrj/vol20/iss1/art1Sat, 12 May 2018 13:20:36 PDT
Aging is inevitable—it happens to all of us—but it is not a homogeneous experience. Aging people are among the most vulnerable populations in the world, and thus deserve our care and compassion. This is particularly true of aging American Indian and Alaska Natives (AI/ANs), who face unique barriers to accessing health care due to geographic constraints, language and cultural barriers, and a lack of infrastructure and resource support. This article examines the availability, accessibility, and acceptability of health care services for aging AI/ANs, with a focus on culturally appropriate care and the role of community health representatives in communities with traditions that support resiliency.
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Mehgan Gallagher et al.Civil LawCivil Rights, GenerallyConflict of LawsDomestic RelationsElder LawGovernment ContractsHealth Law and PolicyHuman Rights LawIndian and Aboriginal LawJurisdictionJurisprudenceLaw and SocietyRace and EthnicityState and Local Government LawIncomplete Contracting and AI Alignmenthttp://law.bepress.com/usclwps-lss/265
http://law.bepress.com/usclwps-lss/265Thu, 19 Apr 2018 15:17:27 PDT
We suggest that the analysis of incomplete contracting developed by law and economics researchers can provide a useful framework for understanding the AI alignment problem and help to generate a systematic approach to finding solutions. We first provide an overview of the incomplete contracting literature and explore parallels between this work and the problem of AI alignment. As we emphasize, misalignment between principal and agent is a core focus of economic analysis. We highlight some technical results from the economics literature on incomplete contracts that may provide insights for AI alignment researchers. Our core contribution, however, is to bring to bear an insight that economists have been urged to absorb from legal scholars and other behavioral scientists: the fact that human contracting is supported by substantial amounts of external structure, such as generally available institutions (culture, law) that can supply implied terms to fill the gaps in incomplete contracts. We propose a research agenda for AI alignment work that focuses on the problem of how to build AI that can replicate the human cognitive processes that connect individual incomplete contracts with this supporting external structure.
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Dylan Hadfield-Menell et al.The Transgender Marriage Dilemmahttp://law.bepress.com/wisconsinwlj/vol30/iss2/art6
http://law.bepress.com/wisconsinwlj/vol30/iss2/art6Thu, 12 Apr 2018 14:12:27 PDT
This article takes a critical look at (1) the state of the U.S.'s laws surrounding how trans people can update their legal documents to reflect their gender identity and (2) cases from 1970 to 2015 that engage the distinction between sex and gender in the context of whether to recognize as valid a marriage between transgender and cisgender persons. The analysis encompasses various legal issues on the topic, including the Full Faith and Credit Clause and the effect common law marriage can have on outcomes of these cases. This piece is atypical in that it is written about an issue trans people face, by a trans person of color with experience navigating many of these hurdles.
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Julian N. LarryCivil Rights, GenerallyINTERPRETING THE OIL POLLUTION ACT OF 1990 (OPA 90) AS INAPPLICABLE TO THE NATURAL GAS INDUSTRY AND DEEPWATER LNG PORTShttp://law.bepress.com/oilgnrej/vol3/iss6/art1
http://law.bepress.com/oilgnrej/vol3/iss6/art1Wed, 11 Apr 2018 09:10:11 PDTPatrick R. PennellaAdministrative LawAdmiraltyEnergy and Utilities LawEnvironmental LawNatural Resources LawOil, Gas, and Mineral LawReputational Economies of Scalehttp://law.bepress.com/usclwps-lss/264
http://law.bepress.com/usclwps-lss/264Tue, 03 Apr 2018 09:31:29 PDT
For many years, most scholars have assumed that the strength of reputational incentives is positively correlated with the frequency of repeat play. Firms that sell more products or services were thought more likely to be trustworthy than those that sell less because they have more to lose if consumers decide they have behaved badly. That assumption has been called into question by recent work that shows that, under the standard infinitely repeated game model of reputation, reputational economies of scale will occur only under special conditions, such as monopoly, because larger firms not only have more to lose from behaving badly, but also more to gain. This article argues that reputational economies of scale exist even when there is competition and without other special conditions, if the probability of detection is positively correlated with the frequency of repeat play. It also shows that reputational economies of scale exist in a finite horizon model of reputation. Reputational economies of scale help explain why law and accounting firms can act as gatekeepers, why mass market products are more likely to be safe, why firms are less likely to exploit one-sided contracts than consumers, and why manufacturers market new products under the umbrella of established trademark.
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Daniel M. KlermanDigital Expungementhttp://law.bepress.com/marylandlr/vol1/iss1/art3
http://law.bepress.com/marylandlr/vol1/iss1/art3Mon, 02 Apr 2018 19:45:12 PDT
Digital technology might lead to the extinction of criminal rehabilitation. In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet. The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used. These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement. Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged. Legal research websites, websites that publish booking photographs taken during investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows. After an introduction, Part II examines rehabilitation and expungement as facets of criminal law. Part III explores the challenges of digital technology to rehabilitation measures. Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

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Eldar HaberCommunications LawComputer LawCriminal Law and ProcedureFirst AmendmentLaw and SocietyLaw and TechnologyLaw EnforcementLegislationPublic Law and Legal TheoryScience and TechnologySentencing and Punishment